The Creditors of Hay of Park v. Alexander Falconer of Blackhill
Date: 23 January 1711 Case No. No 27.
The cautioner for a factor upon a sequestrated estate, found liable for annualrent of the factor's intromissions, according to the act of sederunt 1690, although the bond of cautionry did not bear annualrent.
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In the count and reckoning at the instance of Park Hay's Creditors, against Alexander Falconer, as cautioner for Sir Hugh Campbell of Calder their factor; The Lords found the factor and his cautioner liable for the victual only, either according to the fiars, or according to the prices received by the factor, deducting all losses, in the option of the pursuers; and found the cautioner liable for the annualrent of Sir Hugh's intromissions, as factors are liable by the act of sederunt, 31st July 1690. Albeit it was alleged for the defender, That the bond of cautionry bore no annualrent, and a cautioner in a suspension was assoilzied from the expences modified by the decreet, finding the letters orderly proceeded, in regard he was hot expressly bound therefor by his bond; notwithstanding of a prior act of sederunt, ordaining cautioners to enact themselves, both for the sums charged for, and also for what expenses should be modified, 17th December 1709, Dumbar contra Muirhead, infra Sect. 7.
